Section 41: Communications with His Majesty

When the information relates to communications with the Sovereign or the granting of honours.

Communications with the King and honours#

Section 41 of FOISA exempts information relating to communications with the Royal Family and the Royal Household, and information about the awarding of honours. This is a class-based exemption - the authority does not need to show that disclosure would cause any specific harm. If the information falls within the class, the exemption applies. It is rarely encountered in practice.

In plain terms#

The authority is saying either: this information relates to communications with the King, the Royal Family, or the Royal Household (section 41(a)), or: this information relates to the process by which honours are awarded (section 41(b)).

You ask the Scottish Government for correspondence between the First Minister’s office and the Royal Household about an upcoming royal visit. The Government refuses under section 41(a), saying the information relates to communications with the Royal Household.

The legal detail#

Section 41(a) exempts information that relates to communications with His Majesty, with other members of the Royal Family, or with the Royal Household. This covers direct communications (letters, emails, briefings sent to or received from the Palace) and information relating to those communications (such as internal emails discussing the content of a royal letter or preparing a response).

Section 41(b) exempts information relating to the exercise by His Majesty of the prerogative of honour - the system by which honours such as knighthoods, military medals, gallantry awards, life peerages, and appointments to the Privy Council are conferred. This covers nominations, deliberations about candidates, and the reasons for awarding or not awarding honours.

Absolute or qualified?#

Both limbs are qualified. The public interest test applies to section 41(a) and section 41(b). Even where the information falls within the class, the authority must weigh the public interest in disclosure against the interest in withholding.

This is a notable difference from the rest of the UK. In England, Wales, and Northern Ireland, the equivalent exemption in section 37(1) of FOIA was amended in 2011 to make communications with the Sovereign or heir to the throne absolute. Scotland did not follow suit. Under FOISA, the public interest test still applies to all royal communications.

See What can they refuse? for more on the public interest test.

How it’s used in practice#

The Commissioner has considered section 41(a) in a small number of cases. In one, the Commissioner ordered the Scottish Ministers to disclose minutes of management group meetings, finding that the public interest in transparency in government outweighed the interest in protecting the political neutrality of the monarchy. In another (Decision 051/2006), the Commissioner accepted that documents recording the attitude of the Royal Family and Royal Household to the Holyrood Project were exempt, and upheld the refusal.

For section 41(b), the Commissioner has acknowledged a public interest in preserving the integrity of the honours nomination process. But this does not give the exemption blanket protection. The passage of time matters. In one case involving deliberations about whether to nominate the late Jock Stein for an honour, the Commissioner ordered disclosure - the documents were around 40 years old, Stein had died in 1985, and the individuals involved in the discussions almost certainly no longer held such roles.

In two other cases - one involving a knighthood (Decision 055/2013) and another involving a Queen’s Police Medal nomination (Decision 221/2007) - the Commissioner upheld the exemption. Those involved in the deliberations were likely still in post and involved in similar future decisions.

How to challenge it#

Consider the passage of time. If the communications or honours deliberations are old, the public interest in withholding weakens. Arguments about protecting relationships with the Royal Household or preserving the integrity of the honours process carry less weight when the events took place decades ago.

For section 41(a), ask whether the information genuinely relates to communications with the Royal Family or Household. Internal policy discussions that happen to mention the monarchy in passing are not covered unless they relate to actual communications.

For section 41(b), consider whether the honour has already been publicly announced. Once someone has received a public honour, the fact that they were nominated is no longer secret - though the deliberations about their nomination may still be covered.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exemption to work through these questions step by step and draft a review request.

Good to know: The time limits for section 41 are different for each limb. Section 41(a) has complex rules: the exemption cannot apply after the later of (i) 20 years from the creation of the information, or (ii) 5 years after the death of the relevant person - the King (for communications with him), the Royal Family member (for communications with them), or the Sovereign who was reigning when the information was created (for communications with the Royal Household). Section 41(b) generally cannot apply to information more than 60 years old. The First Minister has the power to overrule the Commissioner on section 41(b) under section 52 of FOISA, but this has never been used. This veto does not apply to section 41(a).